policy statement rule of law

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POLICYSTATEMENT

Rule of LawPrinciples

GPO Box 1989, Canberra

ACT 2601, DX 5719 Canberra

19 Torrens St Braddon ACT 2612

Telephone +61 2 6246 3788

Facsimile +61 2 6248 0639

Law Council of Australia Limited

ABN 85 005 260 622

www.lawcouncil.asn.au

March 2011


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LAW COUNCIL OF AUSTRALIA

POLICY STATEMENT RULE OF LAW PRINCIPLES 2

IntroductionA key objective of the Law Council of Australia is the

maintenance and promotion of the rule of law. For

that reason, the Law Council often provides analysis

of federal legislation and federal executive actionbased on its compliance with so-called rule of law

principles.

This document seeks to articulate some of those

key principles. It is intended to act as a guide to the

framework often employed by the Law Council and

its committees in evaluating the merits of government

legislation, policy and practice.

This document is not intended to offer a

comprehensive denition of the rule of law. It is

acknowledged that what is encompassed under thebanner of that phrase is a matter of some contest and

that it is a concept which is not necessarily amenable

to an exhaustive denition.

In particular, it is acknowledged that there is

considerable public debate about two matters:

the intersection between human rights and the

rule of law and the extent to which the rule

of law is necessarily predicated on respect for

human rights.

the intersection between democracy and therule of law and the extent to which the rule of

law necessarily assumes that laws are passed

by a democratically elected legislature formed

following free, fair and regular elections.

It is not necessary to denitively resolve either ofthose debates in this document.

Instead, this document focuses on the most basic

tenets of the rule of law and those which are

most often invoked in Law Council submissions and

advocacy.

With respect to broader human rights principles,

it is noted that Australia is a party to the seven key

international human rights treaties and has also signed

or ratied a number of optional protocols to thosetreaties. These international treaties, which Australia

has voluntarily entered in, set out in clear terms

Australias international human rights obligations.

Australia is bound to comply with their provisions and

to implement them domestically. For that reason, in

an Australian context, regardless of the extent of any

agreed overlap between the rule of law and humanrights, it is entirely appropriate to evaluate government

legislation, policy and practice by reference to its

compliance with international human rights law.

Key Principles

The law must be both readily1.known and available, and certain and

clearIn particular, people must be able to know in advance

whether their conduct might attract criminal sanction

or a civil penalty. For that reason:

Legislative provisions which create criminal ora.

civil penalties should not be retrospective in their

operation.

The intended scope and operation of offenceb.

provisions should be unambiguous and key terms

should be dened. Offence provisions should

not be so broadly drafted that they inadvertentlycapture a wide range of benign conduct and

are thus overly dependent on police and

prosecutorial discretion to determine, in practice,

what type of conduct should or should not be

subject to sanction.

The fault element for each element of an offencec.

should be clear.

The law should be applied to2.all people equally and should notdiscriminate between people onarbitrary or irrational grounds

In particular, no one should be regarded as above

the law and all people should be held to account

for a breach of law, regardless of rank or station.

Furthermore:

Everyone is entitled to equal protection beforea.

the law and no one should be conferred with

special privileges.

Where the law distinguishes between differentb.

classes of persons, for example on the basis of

age, there should be a demonstrable and rational

basis for that differentiation.


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All people are entitled to the3.presumption of innocence and to afair and public trial

In particular, no one should be subject to punitive

action by the state unless he or she has rst been

found guilty of an offence by an independent,

impartial and competent tribunal. Inherent in this is

a prohibition on indenite detention without trial.

Furthermore:

No one should be compelled to testify againsta.

him or herself. Where a person is subject to

questioning by the state, he or she should be

given appropriate warnings about this right.

Where a person is compelled to provide

information to the state, there should be aprohibition on that information, or further

information derived from it, being used in

proceedings against that person (that is there

should be use and derivative use immunity)..

Upon arrest and/or charge, a person shouldb.

be fully and promptly informed of any offence

which he or she is alleged to have committed and,

at trial, an accused person should be afforded

a meaningful opportunity to interrogate and

challenge the information which is relied upon

against him or her.A person who is subject to criminal chargec.

should be tried without undue delay. Where the

time delay between the conduct constituting an

offence and the prosecution for that offence is

such that it will unduly prejudice a persons ability

to defend themselves, proceedings should be

stayed, except where the person has caused or

substantially contributed to the delay.

Persons awaiting trial should not generallyd.

be detained in custody, unless they are a

demonstrated ight risk or their release poses a

demonstrated risk to the community or ongoing

investigation.

The state should be required to prove, beyonde.

reasonable doubt, every element of a criminal

offence, particularly any element of the offence

which is central to the question of culpability for

the offence. Only where a matter is peculiarly

within the defendants knowledge and not

available to the prosecution, should the defendant

bear the onus of establishing that matter. Even

then the defendant should ordinarily bear an

evidential, as opposed to a legal burden.

The state should be required to prove that af.

person intended, or at the very least was reckless

about, each physical element of an offence in

order for a person to be found guilty of that

offence. Strict and absolute liability should only

be applied to less serious offences and where

such an approach is necessary for the success of

the relevant regulatory regime.

A person convicted of a crime should have theg.

opportunity to have his or her conviction and

sentence reviewed by a higher tribunal.

Everyone should have access to4.competent and independent legaladvice

In particular, everyone should have access to

a competent and independent lawyer of their

choice in order to establish and defend their rights.

Furthermore:

The state should provide adequate resources toa.

guarantee access to a competent and independent

lawyer in circumstances where individuals do not

have the independent means to retain a lawyer.

Lawyer-client communications should beb. regarded as condential, except where lawyerand client are together engaged in conduct that

is calculated to defeat the ends of justice or is

otherwise in breach of the law.

Lawyers should not be subject to sanction orc.

discrimination as a result of the legal advice or

representation they have provided, except where

that advice fails to comply with agreed standards

of professional conduct.

Lawyers should be given timely access to relevantd.

information and documents about their client inorder to enable them to provide effective legal

assistance to their clients.


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The Executive should be subject6.to the law and any action undertakenby the Executive should beauthorised by law

Executive powers should be carefully dened by law,

such that it is not left to the Executive to determine

for itself what powers it has and when and how they

may be used. In particular:

Where legislation allows for the Executive toa.

issue subordinate legislation in the form of

regulations, rules, directions or like instruments,

the scope of that delegated authority should

be carefully conned and remain subject to

parliamentary supervision. Moreover, the

Executive should not be able to issue aninstrument which creates new offences or confers

new powers on Executive agencies.

The use of executive powers should be subject tob.

meaningful parliamentary and judicial oversight,

particularly: powers to use force; to detain; to

enter private premises; to seize property; to

copy or seize information; to intercept or access

telecommunications or stored communications;

to compel the attendance or cooperation of

a person; or to deport a person. Mechanisms

should be in place to safeguard against the misuseor overuse of executive powers.

Where the Executive has acted unlawfully, anyonec.

affected should have access to effective remedy

and redress.

Executive decision making should comply withd.

the principles of natural justice and be subject to

meaningful judicial review.

The Judiciary should be5.independent of the Executive and theLegislature

The existence of an independent, impartial and

competent judiciary is an essential component of the

rule of law. On that basis:

Procedures for appointing judicial ofcersa.

should be based on identifying individuals of

integrity and ability with appropriate training or

qualications in law and should not be such that

they compromise the independence of those

appointed.

The term of ofce of judges, their independence,b.

security, remuneration, conditions of service,

pensions and the age of retirement should beadequately secured by law.

Judicial ofcers should have the power to controlc.

proceedings before them and, in particular,

to ensure that those proceedings are just and

impartial.

The allocation of cases to judges within ad.

particular court should be an internal matter of

judicial administration.

Legislation, particularly legislation which seekse.

judicial authorisation for executive action, shouldnot limit judicial discretion to such an extent that

the Judiciary is effectively compelled to act as a

rubber stamp for the Executive. The Judiciary

should always have sufcient discretion to ensure

that they can act as justice requires in the case

before them.

In criminal matters, judges should not be requiredf.

to impose mandatory minimum sentences. Such

a requirement interferes with the ability of the

judiciary to determine a just penalty which ts the

individual circumstances of the offender and thecrime.


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States must comply with their8.international legal obligationswhether created by treaty or arisingunder customary international law

Both states and individuals are entitled to expect

that other states will comply with and honour their

international legal obligations, including obligations

relating to the promotion and protection of human

rights. States must avoid inconsistencies between their

international legal obligations and their domestic laws

and policies.

Authorised by LCA Directors

Law Council of Australia

19 March 2011

No person should be subject7.to treatment or punishment whichis inconsistent with respect for theinherent dignity of every human

beingIn particular:

No person should be subject to torture.a.

Information obtained by torture should be

inadmissible in any legal proceedings. Adequate

provision should be made to prosecute and

punish the perpetrators of such conduct.

No person should be subject to cruel, inhumanb.

or degrading treatment or punishment. No

person should be held in conditions of detention

which amount to cruel, inhuman or degradingtreatment. Information obtained by cruel,

inhuman or degrading treatment should be

inadmissible in any legal proceedings. Adequate

provision should be made to prosecute and

punish the perpetrators of such conduct.

No person should be subject to the death penalty.c.


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GPO Box 1989, Canberra

ACT 2601, DX 5719 Canberra

19 Torrens St Braddon ACT 2612

Telephone +61 2 6246 3788

Facsimile +61 2 6248 0639

www.lawcouncil.asn.au

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